How did the justice system fail Brian Banks?

Editor's note: This is the first of a two-part series about Brian Banks, a man wrongly convicted of rape, and how the justice system failed him.

LONG BEACH - Ten years ago, a 17-year-old boy sat in the Long Beach Superior Courthouse and was asked to make an impossible decision.

Admit to rape, sodomy and kidnapping that he didn't commit, waive his constitutional rights and go to prison for up to six years. To toss out a football scholarship and possibly an NFL career and register for a life of ignominy as a sex offender. Or risk everything and go to trial with the chance of spending 41 years in jail, a lifetime in essence.

That was the choice Brian Banks was given on July 8, 2003 while a jury was being assembled to hear his case and determine his fate.

Attorneys say it was generous effort, except, of course, if you are innocent.

What do you do when you're 17, terrified, bewildered and pressured?

You take the deal, of course, even though you're innocent.

This is the story of Banks, of his decision, of the plea system that put him in such an untenable situation, of the struggle to undo a plea bargain and, ultimately, of something approaching redemption.

These days are the stuff of dreams for Banks. Fresh off receiving an offer to attend a minicamp with the National Football League's Seattle Seahawks, several job possibilities and an appearance on the "Tonight Show," Banks is flying high.

The story of the former Long Beach football star who walked out of a Long Beach courthouse two weeks ago exonerated from a 10-year-old false rape charge has gone global. So has his attempt to recapture a lost dream to play in the NFL.

"This is the most important week in Brian's life," said Banks' lawyer and adviser Justin Brooks of the California Innocence Project. "I want him to concentrate on football."

As the 26-year-old Banks looks at a future now brimming with possibilities, it's tempting for society to focus on the happy ending.

It's more comforting to "concentrate on football" than more troubling questions. It's easy to forget that for most of the past decade Banks was a young man whom society and the judicial system failed at virtually every turn. Or that his case serves as a primer on the dangers of plea-bargained cases, particularly for the innocent, many say.

That's precisely the story Brooks says needs to be told. Because that's the story that affects an unknown number of Brian Bankses out there who have been cowed, cajoled or otherwise convinced into admitting to things they never did.

"The prevailing thought is that innocent people don't take deals," said Long Beach attorney and former prosecutor Anthony Falangetti, "but that's not a fact."

Pressured to plead

One of those is Banks who, despite his innocence, said he felt pressured to accept a plea bargain that ended up putting him in prison for more than five years followed by five years of probation and lifetime registration as a sex offender. It was a decision he made when he weighed it against the possibility of spending 41 years to life in prison for the alleged rape, sodomy and kidnapping of a high school classmate, Wanetta Gibson.

Plea-bargained cases account for about 97 percent of federal convictions and 94 percent of state court convictions in the U.S., according to the most recently available statistics.

"No one's thinking of going to trial anymore," Brooks said.

Although the Sixth Amendment to the Constitution guarantees every person trial by jury, U.S. Supreme Court Justice Anthony Kennedy recently said "criminal justice today is for the most part a system of pleas, not a system of trials."

The justice system is awash in cases, and plea bargains are an efficient way to adjudicate a case.

To some, the preponderance of pleas is emblematic of much of what's wrong with the legal system. Finding the right balance between pleas and trials is an ongoing issue of debate in legal circles.

System overwhelmed

"We just have too much volume for what the system can support, and we're a volume business," said Laurie Levenson, a law professor and David W. Burcham Chair in Ethical Advocacy at Loyola Law School in Los Angeles.

The outcome of such a system is "partial justice," according to Levenson.

Others say that for the large part American justice works.

"Ninety percent of the time our system works well," Falangetti said. "(Banks') case shows where we have flaws."

Local attorney Lisa Chorness Hovden, who has been on both sides of the judicial system as prosecutor and defense attorney, said circumstances Banks faced were "probably a very small percentage," but nonetheless were "egregious."

Part of the problem with the plea system is that once guilt is admitted, it's incredibly difficult to undo, Brooks said.

Much harder to undo than a wrongful conviction from a trial by jury.

"It's a Herculean task," Chorness Hovden said of undoing a guilty plea.

Local defense attorney Henry Salcido agrees.

"It takes a massive effort by any law firm," Salcido said. "It is truly an uphill climb."

This is due to a number of factors, not the least of which is when a person pleads guilty or no contest to a charge, they waive a number of their constitutional rights. They say they have weighed the consequences and have freely entered into the agreement.

A guilty plea is a weighty admission, and while it may at some point sound like obtuse verbiage to the average person, accepting a plea is taken quite seriously by the court and judges.

Overcoming that is brutally difficult.

In recent years, hundreds of defendants who were wrongfully convicted in trials have been freed with the emergence of DNA evidence.

Falangetti said when such evidence is unearthed, the defense has only to prove the new evidence would have raised doubt that a jury could have determined was "reasonable doubt."

"That's obtainable," Falangetti said.

In the case of a plea bargain, the requirement is that the "new evidence completely undermines the case of the prosecution and points unerringly to the petitioner's innocence" courts have ruled.

And as Chorness Hovden points out, there is a difference between innocent and not guilty. Not guilty means that there is reasonable doubt in spite of the evidence; being innocent means there is no question the person didn't commit the crime.

Since its inception in 1999, Brooks' California Innocence Project has helped free 11 men who have been wrongfully convicted, and has helped others reduce their sentences. But Banks was the first for whom a plea was reversed.

So hard are pleas to undo, that Brooks said he has been working on one such case for 17 years.

And yet the plea-bargainers are the overwhelming majority of those who go to jail.

"We know and we have proved that wrongful convictions (that went to trial) are just the tip of the iceberg," said Levenson, the Loyola professor.

"Everyone knows it."

The turnaround

After Banks was released from prison, his legal fight was far from over. Banks said he scoured the Internet and unsuccessfully "called thousands" of lawyers and organizations to take on the cause of clearing his record. Those organizations included the California Innocence Project, which, although it would eventually become his advocate, initially turned him down.

"I was begging someone to take my case," Banks said on the day of his exoneration.

What Banks lacked was new evidence that pointed to his innocence, which is required for a case to be overturned or retried. Without that, Banks had nothing.

That's when the most inexplicable turn of fate occurred - the girl who had wrongfully accused him, seeking to "let bygones be bygones," contacted Banks on Facebook.

Gibson's reaching out to Banks so stretched the bounds of credibility, Banks himself didn't believe it.

He said when he first saw the "friend request" from Gibson he thought it was a cruel, sick joke.

Banks said he has no idea why Gibson reached out to him.

It could have been from a sense of guilt and regret. It could have been some vague hope of starting a relationship. No one knows and Gibson hasn't spoken publicly.

She also said on tape that she was worried about being asked to return her take of a $1.5 million settlement she and her mother received from a suit against the Long Beach Unified School District in the wake of Banks' conviction.

Banks was able to convince Gibson to come to the office of an investigator for Banks, where she fully recanted in a secretly recorded conversation.

A writ of habeus corpus, a legal action to override the conviction, says Gibson admitted "she and Banks were `making out pretty heavy' on the day of the alleged rape." But nothing more.

Gibson said Banks didn't force her to have intercourse or "anything like that."

Gibson also said, according to the writ, that she and Banks were just exploring sexuality. Then "the adults got involved and blew it all out of proportion" and that "adults put stuff in (her) head."

Also, according to the writ, Gibson said when she tried to come clean to her civil attorney in the suit against the school district, the attorney told her, "Don't say nothing. Like don't talk at all. Let them do what they gonna do."

The recording was the game changer for Banks. Or was it?

Long road ahead

Brooks said the video was what encouraged the California Innocence Project to take on Banks' case, but at that point it was still a longshot.

Brooks said he didn't know whether the video would be admitted into evidence; Gibson proved increasingly elusive, recanted her recantation and refused to sign a written recantantion statement. And there was still Banks' plea and admission of guilt on the record.

"We faced an uphill battle," Brooks said.

It was a battle that would take more than a year to wage, and that was fast by legal standards.

However, once Gibson's recantation broke the deadlock in Banks' life, everything started to break his way and his luck changed completely.

In the California Innocence Project, Banks found not only a passionate advocate, but one with the resources to undertake the burdensome task of re-examining the evidence, reinterviewing principals and finding the evidence that "points unerringly to the petitioner's innocence."

As a law school clinical program at California Western School of Law, the California Innocence Project has a large stable of practicing and aspiring lawyers to do the heavy lifting that a case such as Banks' required.

To hire a private firm would have been impossible for Banks.

"Most people don't have the financial wherewithal," Salcido said.

Chorness Hovden said it takes an organization like the California Innocence Project, which has 10 lawyers plus the students, to pull off such a large undertaking.

It also took willingness from the District Attorney's Office to support the effort. That was the final, and most critical, tumbler to fall in Banks' favor.

District attorneys can be notoriously obdurate about overturning convictions.